Opinion
No. 05-11-01562-CR
10-05-2012
HERIBERTO SANTOS MEDINA, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-52528-U
MEMORANDUM OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Murphy
Heriberto Santos Medina appeals his conviction for aggravated sexual assault of a child, for which the trial court assessed punishment at life in the penitentiary and a $10,000 fine. See Tex. Penal Code Ann. § 22.021 (West Supp. 2012). In two points of error, appellant challenges the sufficiency of the evidence to support his conviction and argues that the trial court erred in admitting statements he made to a Child Protective Services investigator. We affirm. BACKGROUND
The complainant, R.R., was appellant's stepdaughter and was thirteen years old at the time of trial. R.R. testified that she had moved to the United States from El Salvador with her mother when she was seven years old. They stayed in the United States for almost a year before returning to El Salvador. The first time she was in the United States, R.R. lived with her mother and appellant. When R.R. and her mother returned to El Salvador, appellant remained in Dallas, Texas. He "sometimes" visited R.R. and her mother in El Salvador. In February 2010, when R.R. was twelve years old, she returned to the United States, without her mother, to attend school. The plan was for R.R. to live with appellant.
The same day R.R. returned to the United States, appellant started touching her. R.R. testified that appellant first began touching her breasts with his hands on top of her clothing. Appellant told her he was doing this so her "boobies would grow." R.R. asked him to stop, but appellant continued.
R.R. testified to another instance when she was in the bathroom and started feeling dizzy. As she was coming out of the bathroom, she fainted. She woke up in her bed with appellant, who had his hands inside her pajamas and was touching her vulva. She told him to stop, but he refused. He told her "he was doing it because [she] was not his daughter." She asked him to respect her, to stop for her mother, and to get out of her room. But appellant began removing R.R.'s clothing. R.R. testified regarding what happened next:
Q. (By State) You said that he touched your vulva with his hands; is that right?
A. (By R.R.) Yes.
Q. Did he touch it with any other part of his body? A. With his penis.
Q. And was that on the outside or inside or something else?
A. Inside.
Q. How did it make your vulva feel?
A. Painful.
Q. Did you say anything to him?
A. For him to stop.
Q. When his penis touch[ed] your vulva where were you in your room?
A. On my bed.
Q. And how were your bodies on your bed?
A. I don't remember.
Q. What made him stop?
A. I told him that I wanted to go to the bathroom.
Q. Did you ever see anything come out of his penis?
A. Just some white stuff.
Q. And where did that white stuff go?
A. On my panties.
On cross-examination, appellant's trial attorney further questioned R.R. about this incident:
Q. (By appellant's attorney) Do you recall when you talked to some detectives or somebody who was interviewing you that you said that he may have just put it in just a little bit in your vagina?
A. Yes.
Q. And is it possible that he did put it in just a little bit?
A. I felt pain.
Q. Is it possible though that it didn't, he just, didn't put it in just even a little bit?
A. What do you mean by that?
Q. Did he put his penis in your vagina completely?
A. Yes.
Q. Do you recall ever telling anybody, a detective or anybody who interviewed you, that he may have just put it in just a little bit? Not completely.
A. Yes, I do remember that.
R.R. explained that, while the abuse did not happen everyday, it continued for almost a week. Appellant warned R.R. that if she spoke about what was happening, he would go to jail, he "would be very unhappy," and R.R. would be "in a place for minors."
R.R. also testified that appellant began buying her clothing. Some of the clothing included school uniforms. He also bought her "the type of clothing that women wear when they are at their, on their honeymoon with their husbands." Appellant told R.R. that he was buying her clothing "to give [her] passion."
R.R. did not immediately tell her mother what was happening out of fear that appellant might do something to R.R. When R.R. finally told her mother, her mother called R.R.'s aunt who was living in California so the aunt could "go get" R.R. The aunt also suggested that R.R. stay a few days with Efigenia Tovar, a woman R.R. had known since the first time she and her mother lived in the United States.
Tovar had given R.R. rides to school for a short period of time when R.R. was first in the country. She also had begun picking up R.R. from school after her return from El Salvador. Tovar testified that R.R. called her and said she needed to talk to her about something. Tovar picked up R.R. from school, and R.R. told her what was happening. Tovar agreed to let R.R. stay with her for a few days, and they went to R.R.'s house to get her clothes.
R.R. stayed with Tovar that night, and Tovar dropped off R.R. at school the next morning. When R.R. arrived, R.R. was stopped by Guadalupe Sanchez, a bilingual teacher's assistant at the school. Sanchez asked R.R. what she was doing there; Sanchez said R.R.'s father was in the office withdrawing her from school. Appellant had told the school that he was withdrawing R.R. because she was going to be staying with her aunt. He also told them R.R. was already in California. Sanchez testified that both R.R. and appellant were surprised to see each other at the school. R.R. began screaming at him. According to Sanchez, appellant told R.R. to be quiet and "[d]on't say nothing. You [are] going to get me in trouble." At that time, Sanchez realized something was going on and tried to get appellant to leave the school. She told him not to worry; she would take R.R. to class, and he could go ahead and go. After appellant left, R.R. told Sanchez and the school secretary about the sexual assault. They contacted the police.
As part of the investigation, police officers collected some of R.R.'s clothing and bed linens. A lab analysis revealed semen on R.R.'s underwear and blanket. A lab worker who conducted a DNA analysis on the items testified that he was able to match appellant's DNA to fluid samples on R.R.'s underwear, shorts, and blanket. R.R. also underwent a medical examination. The doctor that performed the examination testified that R.R.'s genital exam was normal. She also said that "[n]ine out of ten people who are sexually assaulted will still have a normal exam."
After appellant was arrested and taken to jail, he was interviewed by Andres Zavala, a CPS investigator. Zavala testified that appellant told him "the situation went through his hands" and "one day his stepdaughter [R.R.] was at home and she was sexy and he touched her breasts" for about thirty minutes. Appellant told Zavala he touched R.R.'s "private part" under her underwear. He also told Zavala he got on top of R.R. and ejaculated in his underwear. According to Zavala, appellant confessed that "he penetrated [R.R's] vagina with his hand." On cross-examination, appellant's attorney presented Zavala with his case report, which indicated that appellant told Zavala he touched R.R.'s breasts; the report did not indicate a confession by appellant that he had penetrated R.R.'s vagina with his hand. Zavala explained that this information was not written in his report, but he remembered his conversation with appellant because appellant was remorseful. He added that remorse is not something Zavala has seen often.
Appellant also testified at trial. He admitted he touched R.R.'s breasts with his hands, but he claimed R.R. had given him permission to do so. He also admitted to getting on top of R.R. and ejaculating in his underwear when he was touching her; he denied ever touching her vagina with his hand or penetrating her vagina with his penis. He said he could not remember whether he confessed to Zavala that he had touched R.R.'s vagina.
The trial court, in a bench trial, convicted appellant of the first degree felony of aggregated sexual assault of a child under the age of fourteen and assessed the punishment and fine. This appeal followed. DISCUSSION
Point of Error One: Sufficiency of the Evidence
Appellant argues in his first point of error that there was insufficient evidence to prove he penetrated R.R.'s sexual organ as alleged.
Standard of Review
In our sufficiency review, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). We defer to the trier of fact's credibility and weight determinations, because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 319. The trial court in a bench trial is the exclusive trier of facts. Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). As such, the court is free to accept or reject the testimony of any witness. Id.
Analysis
The trial court found appellant guilty of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021. As applicable here, appellant committed the offense of aggravated sexual assault if he intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means and the victim was younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). The testimony of R.R., as the child victim, is sufficient alone to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art 38.07(a), (b)(1) (West Supp. 2011); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd).
Appellant admitted he touched R.R.'s breasts and ejaculated. He denied touching or penetrating her vagina. He argued that the evidence proved indecency with a child, which does not require penetration as an element. To obtain a conviction for indecency with a child, the State would have had to prove appellant engaged in sexual contact with R.R. by touching part of her genitals with his hand with the intent to arouse and gratify appellant's sexual desire. See Tex. Penal Code Ann. § 21.11(a)(1). Claiming the evidence was insufficient to prove penetration, appellant argued the trial court erred in finding him guilty of aggravated sexual assault. Evidence of penetration included R.R.'s testimony that appellant penetrated her vagina with his penis. She testified she fainted after coming out of her bathroom; when she woke up, appellant was lying in bed with her with his hands in her pajamas, touching her vulva. He then removed her clothing and placed his penis inside her vulva. R.R. described the experience as "painful." This testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction, even if the victim is a child. Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.). In addition to R.R.'s testimony, CPS investigator Zavala testified that appellant confessed to "penetrat[ing] [R.R's] vagina with his hand." Viewing this evidence in the light most favorable to the verdict, the trial court could have found the essential element of penetration beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
Appellant acknowledges that the testimony of a child victim alone has been held to be sufficient evidence to sustain a conviction, citing Tear v. State, 74 S.W.3d 555 (Tex. App.-Dallas 2002, pet. ref'd), but he attempts to distinguish the present case from Tear by arguing that the victim in Tear testified unequivocally that appellant repeatedly contacted the victim's sexual organ with his sexual organ. Appellant claims that R.R. did not consistently assert penile penetration. When the State asked R.R. whether appellant had touched her vulva with anything other than his fingers, she testified that he touched her on the inside with his penis. During cross-examination, appellant's attorney questioned R.R. on whether it was possible that appellant only "put it in just a little bit," or whether he put his penis completely in her vagina. R.R. testified that he put his penis in her vagina "completely." She also affirmed that she recalled telling a detective or somebody that interviewed her that he "may have put it in just a little bit."
Penetration, within the meaning of section 22.021 of the penal code, occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips. Karnes, 873 S.W.2d at 96; accord Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Thus, while the evidence may raise a question regarding the exact level of penetration, R.R.'s testimony is unequivocal that penetration occurred. This testimony is legally sufficient to support the trial court's finding. Appellant's testimony was the only evidence that contradicted R.R.'s testimony regarding penetration. Any conflict in the evidence was for the trial court, as the sole judge of witness credibility, to resolve. See Jackson, 443 U.S. at 326. We may not reevaluate that resolution and therefore defer to the trial court's credibility and weight determinations. Id.
Appellant also argues that the State's forensic evidence failed to establish that there were any findings of sperm or acid phosphatase-a component of seminal fluid that is also present in other bodily fluids-in R.R.'s vagina or anal area. Appellant asserts that these findings therefore tend to support his account of the events. We disagree with appellant's conclusion.
First, the lack of medical evidence does not render a child victim's testimony legally insufficient. Next, forensic evidence is not necessary for an aggravated sexual assault conviction; the testimony of the child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art 38.07(a), (b)(1); Lee, 186 S.W.3d at 655. Finally, although the evidence could support appellant's account of events, as argued, it is also consistent with R.R.'s account. It is true that R.R.'s genital exam was normal, but the doctor that performed the exam also testified that "[n]ine out of ten people who are sexually assaulted will still have a normal exam." It is also true that no evidence of semen was found on R.R.'s vaginal or anal swabs. R.R. testified, however, that appellant ejaculated on her panties, not on or in her vagina or anus. Finally, we reject appellant's reliance on the alleged failure of the State to bring any specific outcry witness testimony to support R.R.'s testimony. Appellant specifically argues that the doctor who examined R.R. was listed as an outcry witness, but she testified that she found no evidence of penetration. As previously stated, the testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction. Karnes, 873 S.W.2d at 96. As a result, the doctor's testimony was not legally necessary to support the conviction.
We conclude the evidence is legally sufficient to support appellant's conviction for aggravated sexual assault of a child. We overrule his first point of error.
Point of Error Two: Admission of Oral Statements
Appellant argues in his second point of error that the trial court erred in admitting his oral statements to a CPS investigator while he was in custody. He asserts his statements were obtained in violation of article 38.22 of the Texas Code of Criminal Procedure.
CPS investigator Zavala interviewed appellant while he was in custody. According to Zavala, appellant admitted touching R.R.'s breasts for approximately thirty minutes. Zavala also testified that appellant admitted to penetrating R.R.'s vagina with his hand, getting on top of her, and ejaculating in his underwear.
Appellant's counsel objected to Zavala's testimony, arguing that Zavala was acting as an agent of law enforcement and therefore, under Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 2005), was required to follow article 38.22 of the code of criminal procedure and give appellant Miranda warnings. The State countered that article 38.22 applies to law enforcement; Zavala was a CPS investigator, not a law enforcement officer. The trial court overruled appellant's objection and allowed Zavala to testify.
Standard of Review
We review the trial court's decision to admit appellant's statements for an abuse of discretion. See Wilkerson v. State, 173 S.W.3d at 533. Thus, in this case, we determine whether the trial court's implicit conclusion that Zavala was not an agent of law enforcement was within the zone of reasonable disagreement. Id. Appellant bore the burden of proving facts supporting a finding that Zavala was an agent of law enforcement. Id. at 529.
Analysis
Article 38.22 provides that no oral statement of an accused made as a result of a custodial interrogation may be admissible against the accused in a criminal proceeding unless, among other requirements, an electronic recording of the statement is made, the accused is given Miranda warnings, and the accused waives any rights set out in the warning. See Tex. Code Crim. Pro. Ann. art. 38.22 (West 2005). The procedural safeguards found in article 38.22 do not apply to all custodial questioning. See Wilkerson, 173 S.W.3d at 527. They apply only to custodial interrogation by law enforcement officers or their agents. Id. Compliance with article 38.22 is not required when a state-agency employee such as a CPS worker is working on a path parallel to, yet separate from, the police. Id. at 529. Compliance is necessary, however, if those once-parallel paths converge and the police and state agent are investigating a criminal offense in tandem. Id. The person alleging the existence of an agency relationship has the burden of proof and there is no presumption of agency. Id.
To determine whether the two paths have converged, we must examine the entire record. Id. at 530. As a baseline, the central inquiry is: Was this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee? Id. at 531.
Appellant objected to Zavala's testimony and questioned him on voir dire. Zavala testified that appellant was already under arrest at the time of his interview. When the trial court asked Zavala about his role, he testified: "I actually investigate. I talk to the alleged perpetrators when they are arrested in Lew Sterrett to find out what's going on, you know, tell, I guess, to do the investigation." Nothing in this voir dire specifically, or in the record generally, indicates that law enforcement was present during Zavala's interview of appellant, gave Zavala instructions to get certain information from appellant, was using Zavala to accomplish what they could not lawfully accomplish themselves, or was using Zavala as an anointed agent. See id. at 530 (providing list of questions pertinent for determining whether article 38.22 applies). Although Zavala testified that he interviews those arrested to find out "what's going on," nothing in the record demonstrates that the questions sought information and evidence for a criminal prosecution or that the questioning was related to some other goal. See id. In short, the record reveals nothing to indicate Zavala was working "in cahoots" with the police to gather evidence to be used in a later criminal proceeding against appellant. See id. at 531.
Appellant asserts that Zavala's four-year investigative background makes it evident that he was operating as a quasi-law enforcement official. Yet appellant cites to no case law-and this Court is aware of none-that suggests the mere number of years a person has been a CPS investigator is evidence of law enforcement. Appellant has presented no evidence that Zavala was "investigat[ing] a criminal offense in tandem" with law enforcement officers and, therefore, has failed to meet his burden. Id. at 529. The trial court did not abuse its discretion by allowing Zavala's testimony of appellant's statements. We overrule appellant's second point of error.
Having overruled appellant's two points of error, we affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111562F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
HERIBERTO SANTOS MEDINA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01562-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10-52528-U).
Opinion delivered by Justice Murphy, Justices Morris and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered October 5, 2012.
MARY MURPHY
JUSTICE